Jurisprudence

All the Reasons Jeff Sessions’ Replacement Should Not Be in Charge of the Mueller Probe

Department of Justice Chief of Staff Matt Whitaker participates in a round table event with the Joint Interagency Task Force.
Department of Justice Chief of Staff Matt Whitaker participates in a round table event with the Joint Interagency Task Force.
Chip Somodevilla/Getty Images

Is this the massacre?

On Tuesday, Democrats won a sweeping victory in the House of Representatives that will give them oversight and subpoena power to investigate potential abuses of power by President Donald Trump and his campaign’s possible role in Russia’s 2016 election interference. On Wednesday, Trump fired his attorney general, Jeff Sessions, and replaced him on an acting basis with Matthew G. Whitaker, Sessions’ now ex-chief of staff at the Justice Department who has suggested that Robert Mueller’s special counsel investigation was becoming a “witch hunt.”

With meaningful congressional oversight of Trump’s treatment of the DOJ just months away, the president seems to have wasted no time in installing the type of loyalist he consistently said he wished Sessions had been. Whitaker has tweeted skeptically of the investigation, written an op-ed arguing that it had begun to exceed its mandate, and described on CNN a scenario whereby the investigation could be ground to “almost a halt” through “crafty” backstage maneuvers. He will now reportedly take charge of the Mueller probe that he views so skeptically.

There are many reasons to be concerned about how Whitaker will approach his task. Whitaker hasn’t just been deeply critical of the Mueller probe, he has even gone so far as to describe a playbook for how the president could quietly sabotage it.

During an appearance on CNN last year, he predicted that the president would attempt to do something “a bit more stage crafty than the blunt instrument of firing the attorney general” in an effort to obstruct the Mueller probe. That “crafty” idea? Slashing Mueller’s budget.

“I could see a scenario where Jeff Sessions is replaced,” Whitaker said, “and that [new] attorney general doesn’t fire Bob Mueller, but he just reduces his budget so low that his investigation grinds to absolute, almost a halt.”

Such an approach would be in line with Whitaker’s other public statements that his new subordinate, Mueller, was overstepping his investigative authority. In 2017, Whitaker wrote a CNN editorial titled “Mueller’s investigation of Trump is going too far.” (That same year, he tweeted a Philadelphia Inquirer column titled “Note to Trump’s lawyer: Do not cooperate with Mueller lynch mob,” with the note “Worth a read.”)

The upshot of Whitaker’s CNN column was that Mueller’s investigation would be crossing into “witch hunt” territory if Rosenstein gave the special counsel latitude to investigate both Trump’s and his businesses’ finances.

He wrote:

It does not take a lawyer or even a former federal prosecutor like myself to conclude that investigating Donald Trump’s finances or his family’s finances falls completely outside of the realm of his 2016 campaign and allegations that the campaign coordinated with the Russian government or anyone else. That goes beyond the scope of the appointment of the special counsel.

Whitaker’s argument rested on the notion that the special counsel’s initial public mandate limited the scope of the inquiry to coordination and links between Trump’s campaign and Russia. He contended that if Mueller were to investigate Trump’s finances “without a broadened scope in his appointment, then this would raise serious concerns that the special counsel’s investigation was a mere witch hunt.”

Former federal prosecutor and “Impeachable Offenses?” author Frank Bowman described the column as “frontrunning the Republicans’ inevitable assault on Mueller.” Bowman told Slate that even if Trump’s finances were not covered by the initial mandate, the special counsel would have a responsibility to investigate them if he found evidence of financial crimes. Mueller could either do so directly or hand that part of the probe to the relevant U.S.
attorney’s office, according to Bowman:

Assume that Mueller’s review of financial documents showed that Trump or the Trump Org had significant financial ties with Russian oligarchs connected to the Kremlin generally or Putin particularly. Given Mueller’s charge, of course he should follow up on that to see if there is a link between the money and the electoral contacts. If he finds no link to electoral meddling, but does find evidence of other crime, then his options are to request expansion of his remit or to refer what he has to a [U.S. Attorney’s Office] with jurisdiction.

“[I]n no case is the answer that Mueller should just shut his eyes and bury the information,” Bowman said. “That’s not the way this works.”

It’s also worth pointing out that, in addition to having authority over Mueller, Whitaker will now be in charge of federal prosecutors across the United States, including, as the New York Times’ Maggie Haberman and Katie Brenner reported last month, those investigating “Trump’s former personal lawyer, Michael D. Cohen, the Trump Organization and the business run by the father of [Trump son-in-law Jared] Kushner.”

All of this would seem to give Whitaker broad power to “grind” any investigation into the president, his family, or his allies to a “halt.”

For these reasons, a number of prominent figures have already called on Whitaker to recuse himself from the Mueller probe, including incoming House Judiciary chairman Jerrold Nadler and former CIA director John Brennan. The same advisory attorneys that guided Sessions to recuse from the Russia investigation should have the opportunity to offer Whitaker the same guidance, but given Trump’s response to Sessions’ recusal—months and months of abuse leading to a forced resignation—it seems unlikely that the next attorney general will voluntarily follow Sessions’ path.

Aside from Nadler’s gavel, which is still months away, perhaps the biggest saving grace for Mueller’s probe at the moment comes from the notion that he has likely prepared for such an eventuality. National security journalist Marcy Wheeler suggested on Wednesday that such a contingency plan was in place, as did former lead Enron prosecutor Samuel W. Buell.

“Nothing that’s happening today vis-a-vis DOJ … is unexpected,” Buell told Slate. “So whatever Mueller has, we should expect that he has it extremely teed up as of today.”